JUDGMENT
1. This appeal arises out of the judgment in OS No.306 of 1975 on the file of the IV Additional Judge, City Civil Court, Hyderabad, which is a suit filed by the appellant against the respondent for specific performance of the reconveyance agreement Ex.A30 of the house bearing No.22-8-389-1 and 2, situate at Purani Haveli, Hyderabad. It is her case that the defendant and her family members are money-lenders, lending small amounts and taking sale deeds as security of immovable properties on the promise of executing reconveyance agreements. The appellant had borrowed an amount of Rs.20,000/- at the interest of 2% per month, and executed the sale-deed, and rental deed, and again an amount of Rs.35,000/- at 2% per month, interest, but obtaining the reconveyance agreement. It was alleged that the respondent realised an amount to the tune of Rs.80,000/- by way of cash and though the appellant was ready and willing to pay the amounts, if any still found due, the respondent failed to execute reconveyance deed. The respondent filed written statement denying the allegations and stating that the transaction of sate was real and was acted upon by the parties and that there was no other understanding between the parties to treat the same as a loan document and the rental deed was also executed towards rent and not towards payment of interest. The execution of the agreement of reconveyance was denied as false and fabricated. The repayment of the amounts to the respondent was also denied. The appellant did not comply with any of the terms set out in the alleged agreement of reconveyance even if it were true. The appellant ought to have claimed reconveyance within three years, from the period of claim, duly discharging the amounts due. The suit is barred by limitation. On the above pleadings the following issues were framed :
“1. Whether the suit agreement of reconveyance dated 7-11-1969 is true ?
2. Whether the plaintiff is entitled for decree for reconveyance ?
3. Whether the suit is in time ?
4. To what relief ?”
2. PWs.1 to 5 were examined for the appellant and DWs.1 to 3 for the respondent. Exs.A1 to A9 and Exs.B1 to B10 and Exs.Xl to X4 were marked in the suit.
3. Having considered the evidence, oral and documentary, the learned Judge dismissed the suit. Hence, this appeal.
4. On the arguments advanced, the
following points arise for consideration in this appeal :
(1) Whether the sale-deed is a mortgage or sale ?
(2) Whether the deed of reconveyance is true and if true, is it enforceable ?
(3) Whether the suit is in time ?
(4) Whether the appellant is entitled for the relief of specific performance ?
5. The appellant was examined as PW1. She deposed that she is an illiterate woman and that her husband used to manage all her affairs. She mortgaged the suit house for Rs.20,000/- for interest at the rate of 2% per month. The house is a double storeyed one -in the ground floor there are nine rooms, first floor nine rooms and second floor one room. She deposed that after her purchase she constructed the suit house spending Rs.one lakh. Subsequently, she borrowed an aggregate amount of Rs.55,000/- from the respondent. She further deposed that after her purchase, she had completed the construction of the suit house. She had repaid the amount to a tune of Rs.70,000/- to 80,000/- to the respondent. The husband of the appellant was examined as PW2. He deposed that he was in need of amount of Rs.40,000/- to 50,000/-. When he approached the husband of the respondent-defendant, for loan, he imposed the condition that security of immoveable property should be given, but instead of a mortgage deed a sale-deed should be executed. On his promise that the property would be reconveyed on
repayment of loan and for securing interest, a rental deed should also be executed. PW2 also stated that the defendant and her family members are money lenders and the appellant and her husband had borrowed paltry amounts mortgaging valuable immovable properties in favour of the respondent-defendant and her family members executing sale deeds and obtaining reconveyance agreements. PW2 reiterated the borrowal of the amounts execution of the sale-deed, rental deed and deed of reconveyance. He stated that he handed over the deed of reconveyance under a receipt passed by Raheem Bin Mubarak, brother-in-law of the respondent-defendant and that he filed the original receipt in OS No.689 of 1972. Exs.A1 to A25 are the certified copies of the rental receipts representing the interest pertaining to two plots at Kaladera, Hyderabad and Somajiguda, Hyderabad, and the suii house. Ex,A26 is the certified copy of sale-deed executed by the appellant-plaintiff in favour of Raheem Bin Mubarak, for the plot at Kaladera, Hyderabad, for Rs.3,000/-, Ex.A27 is the certified copy of sale-deed executed in favour of Basheer Bin Mubarak, for Rs.3,000/-. Ex.A28 is the certified copy of sale-deed executed by the plaintiff-appellant in favour of the defendant-respondent for Rs.20,000/- in respect of the suit house. Ex.A29 is the plan. Ex.A30 is the certified copy of reconveyance agreement. Ex.A31 is the certified copy of original receipt acknowledgment of original reconveyance agreement dated 5-1-1970 pertaining to the suit house, by Raheem Bin Mubarak, in favour of the appellant. Exs.A32-a, 32-b and 32-c are the three sheets in the xerox copy of the original reconveyance deed. The negatives of these documents are marked as Ex.A33 a, b, c. Ex.A34 is the certified copy of sale-deed dated 21-6-1969 executed by Basheerunissa Begum in favour of Basheer Bin Mubarak. Ex.A35 to A37 are certified copies of sale-deeds dated 17-9-1974, 25-1-1969 and 24-11-1972. Ex.A38 is the certified copy of sale-deed dated 26-6-1978. The originals of these documents are filed in OS No.689 of 1972. He stated that he obtained permission
in IA No-74 of 1984 for leading secondary evidence to prove execution of reconveyance agreement. He further stated that he approached the respondent to reconvey the property several times, but she refused to convey, denying the execution of reconveyance agreement itself. In the cross-examination, the following documents are marked : Ex.B1 is the certified copy of registered sale-deed dated 10-5-1967, under which the appellant purchased the property for Rs.25,000 and Ex.B2 is the plan attached to it. Ex.B3 is the sale-deed dated 22-9-1969 executed by the appellant in favour of the respondent. Ex,E4 is the plan attached to it. Ex.B5 is the certified copy of the receipt dated 20-9-1969 for Rs.8,000/-. Exs.B6 to B9 were handed over to the respondent. He admitted that he docs not have any documentary evidence to show the market value of the suit house, as exceeding Rs.20,000/-. Ex.BlO is the certified copy of original rental deed dated 22-2-1971. He admitted that no notice was issued asking the respondent to receive the amount and to reconvey the property. He does not have any documentary evidence to show that he has made any effort to pay Rs.55,000/- and that there is no material to show how much amount his wife paid. He admitted that he does not have any evidence to show that the appellant had paid any amount more than Rs.7,280/- to the respondent. PW3 is the nephew of the appellant. He supported the case of the appellant. He is also one of the attestors of rental-deed and reconveyance deed. He identified the signature on Ex.B32 photo copy of the reconveyance agreement. It is stated that Raheem Bin Mubarak had taken away the original of Ex.B32 as security and gave receipt, the original of which is Ex.A31, which was in his writing. He also supported the case of the appellant with regard to other transactions as spoken to by PW2. PW4 Shankaraiah, supported the case of the appellant that she has transaction with Hasim Bin Mubarak, DW2 in the case. He deposed that they were doing money-lending business, He borrowed Rs.20,000/- from the respondent’s husband and executed sale-deed
Ex.A28 towards security on condition of reconveyance, in favour of Sultan Bin Mubarak, minor son of the respondent, with respect to the house at Chikkadapalli, the market value of which was Rs.4 lakhs. Subsequently he borrowed another amount of Rs.20,000/- and got executed a fresh reconveyance agreement of Rs.40,000/-. He used to pay interest at 2% per month. The respondent used to take rental-deed for the amounts. He also deposed that the respondent’s husband was carrying on money lending profession. PW5, the Income Tax Officer, was examined on Court summons to produce the document of the respondent. Ex.Xl is the revision petition filed by her before the Commissioner of Income Tax. Ex.X2 is the copy of the agreement of reconveyance. Ex.X3 is the office order passed by the Commissioner on the basis of Ex.X1. Ex.X3 does not refer to reconveyance agreement.
6. Against this evidence, the respondent adduced the evidence as DW1, denying the allegations made in the plaint. She deposed that she had paid Rs.8,000/- towards advance and paid the balance of Rs.12,000/- at the time of registration of sale-deed. Ex.B3 is the certified copy of sale-deed dated 22-9-1969. The possession was, however, continued to be with the appellant. Ex.B10 is the certified copy of the rental deed. Originally the rent for the suit house is Rs.375/- per month and after constructions were made, the rent was enhanced to Rs.1,100/- per month. The plaintiff was not paying the rents regularly. The respondent filed suit for recovery of arrears of rents. She denied the execution of reconveyance agreement. DW2, who is the husband of the respondent, denied the allegation that he was a money lender and that he was lending small amounts and securing sale deeds instead of mortgage deeds on the promise to reconvey the property. His Wife sold her jewellary and purchased the suit house for a sum of Rs.20,000/- and thereafter completed the construction of the suit house which was incomplete, and enhanced the rent to Rs.1,100/-
per month from Rs.375/- per month. The appellant paid rents of about Rs.7,000/- and thereafter stopped payment of rents. He denied the allegation of defendant having advanced loans to the plaintiff or her husband or to one Shankaraiah. PW4 in the case. He also denied having purchased any property in the name of his daughter. He supported the case of the defendant in toto. DW3, who is working in Electricity Department supports the case of the respondent with regard to execution of the rental agreement. He is an attestor to the rental deed.
Point No. 1 :
No issue was framed in this regard in the suit, though voluminous evidence was let in to show that the sale-deed is in essence mortgage deed and the transaction is one of mortgage and the rental-deed was executed to secure payment of interest. A decision on this point is necessary to decide the enforceability of reconveyance agreement, which will be discussed in point No.2. Though this point was discussed and a finding is given in CCCA No.149/87 and 116/87, in which judgment is just now rendered, since the finding was based upon the evidence adduced in those suits and evidence was recorded separately in this suit, the said finding cannot be made applicable in this case, though the evidence of the appellant and her husband and the respondent and her husband are on the same lines as the depositions in the batch of suits. Hence, I have to give a finding on this point on the basis of evidence recorded in this case.
7. The appellant has ostensibly executed Ex.B3 in the garb of a sale-deed. The crucial question therefore is whether Ex.B3 is in essence and substance a sale-deed or a deed of mortgage. It is the case of the appellant that there was no transaction of sale between the parties and as the respondent and her family members are money lenders, the appellant’s husband borrowed Rs.20,000/-, as the respondent’s husband insisted upon execution of sale-deed instead of mortgage deed, she has to execute the sale-deed on condition that the
property would be reconveyed on repayment of the loan. The rate of interest agreed upon was 2% per month, which is secured by way of executing rental deed. But for the promise to reconvey the property, she would not have executed the sale-deed Ex.B3. Though voluminous evidence was let in on. this point, the learned Judge has neither framed an issue nor given a finding on this aspect, except stating that there was no evidence to show that the respondent is a money-lender. The following circumstances would clearly show that the document is a mortgage-deed and not a sale-deed :
(1) Apart from oral evidence of PWs.1, 2 and 4, there is sufficient documentary evidence to conclude that the respondent, her husband and his brother are moneylenders and they used to advance monies taking sale-deeds instead of mortgage deeds. Ex.A1 to A25 are the rental receipts pertaining to two plots at Kaladera and Somajiguda including the suit house. Ex.A26 is the certified copy of the sale-deed executed by the plaintiff in favour of Rahim Bin Mubarak, brother of DW2, in respect of her plot at Kaladera, for Rs.3,000/-. Ex.A27 is the certified copy of sale-deed executed by the appellant in favour of Basheer Bin Mubarak again for a paltry amount of Rs.3,000/- for Somajiguda plot. In these two cases also, the appellant continued to be in possession of the plots. PW4 corroborated the evidence of PWs.1 and 2. He is one of the borrowers from the respondent’s husband. He deposed that he borrowed Rs.20,000/- and executed Ex.A28 as security on condition of reconveyance, in favour of the minor son of the respondent, in respect of his house at Chikkadapalli, the market value of which was Rs.four lakhs. Subsequently, he borrowed another amount of Rs.20,000/- and fresh reconveyance agreement was also executed at interest at 2% per month. Taking of rental deeds for payment of rents was also corroborated by this witness. The respondent’s husband is the son-in-law of late Nizam of Hyderabad and he is getting money from Nizam’s Trust. Hence he must have lots
of money in hand to indulge in money lending business. Thus, the practice of the respondent in lending small amounts on security of valuable immoveable properties is conclusively established by these witnesses.
(2) Continued occupation ;-It is an admitted case that the appellant had continued in possession and occupation of the suit premises after sale. It must be noted that the respondent purchased the house selling her jewellery and spending her entire mehar amount for construction. In such a circumstance, would she let out the house immediately after purchase ? This is not a soliatary instance. In the previous transactions also the evidence is that the owner continued to be in possession, which clearly goes to show that the title was not passed under Ex.B3.
(3) Mutation not effected .–After the purchase, the purchaser should file an application for mutating his/her name in the Municipal records. Admittedly, no such application is made nor the mutation was effected, which also goes to show that there was no transfer of title in the transaction.
(4) Rental deed representing interest :–It is not a coincidence that the alleged rent corresponds to approximately 2% per month interest. It is the case of the appellant that the amounts were advanced at the interest of 2% per month and the alleged rents only represents the interest. When the advance taken by the appellant was Rs.5,000/- the rent was Rs. 100/- per month (2% per month). In the suit transaction the rent was Rs.375/-pcr month when Rs.20,000/- was taken (at 1.75% per mondi). When the advance was aggregated to Rs.55,000/- the rent was enhanced to Rs.1,100/- per month, indicating again interest at 2% per month. This factor is a circumstance that cannot be explained in any manner than that the transaction being a mortgage.
(5) Less than the true price :–It is not in dispute that the suit premises is quite a huge one situate in prime area in the city near
Charminar, comprising of more than 15 rooms and it was more or less a new one constructed in 1967 with RCC construction. In 1967 it was purchased for Rs.20,000/- and by 1969 the price should be escalated, particularly in view of the fast development of the city and the house being located in the prime area. Rival claims were made as to who completed the construction of the house. But there is no substantial evidence to reach a finding on this aspect. Though there is no documentary evidence, there is sufficient oral evidence that the value of the house would be Rs.one lakh. The agitation of Telangana during 1967-69 would not have made any appreciable effect on the prices of immoveable properties in Charminar area, particularly when both the parties are Muslims. I am therefore, of the view that the consideration of Rs.20,000/- docs not represent the true market value.
8. The contention is that handing over of link documents in respect of the suit house to the respondent would only go to show that the transaction is one of sale. I do not agree. It is in the evidence that the title deeds were handed over when an amount of Rs.8,000/-was borrowed, may be at the request of the respondent as the understanding was that the property should be kept as security for the amount. Thus, this circumstances would also, in my view, goes to show that the property was mortgaged. It should also be noticed that in this case the respondent had agreed to reconvey the property within a period of 3 years. The appellant must have agreed to execute the sale-deed, though there was no sale transaction only on the promise made by the respondent that she would reconvey the property on repayment of the loan. This circumstance of executing the sale-deed coupled with the promise to reconvey the property, is another factor indicating that Ex.B3 is not a sale-deed.
9. In Smt. Indira Kaur v. Shri Shea Lal Kapoor, , the Supreme Court considering the question whether the document is sale-deed or mortgage deed, factors
viz., keeping the property in the possession of the owner after purchase, mutation not being effected though the reconveyance agreement was stipulated for a period of 10 years, execution of reconveyance agreement, were taken into consideration to hold that it was a mortgage transaction. In the instant case several other factors are also noticed as stated above. I am therefore of the view that Ex.B3 is in reality a mortgage and not sale-deed. The point is answered accordingly.
Point No, 2 :
The respondent is alleged to have executed a contemporaneous reconveyance agreement. Ex.A30 is the certified copy of the reconveyance agreement filed in OS No.689/72. Ex.A32 is the photo copy of the reconveyance agreement. The negatives also arc filed and marked. The pleadings contain a specific averment that the brother-in-law of the respondent “got the original agreement of reconveyance in their custody”, however, passed the receipt Ex. A31 acknowledging the receipt of the original. PW2 deposed that this fact was also admitted by his brother-in-law in the rejoinder filed in OS No.689/72, the suit filed by him on the basis or a pronote executed by the appellant for Rs.60,000/-. In the above circumstances, the original could not be filed. Having considered these facts the predecessor-in-office of the learned Judge has permitted the parties to treat Ex.A30 as secondary evidence in the case. There is voluminous evidence in the case in proof of the same. PW1 stated that at the time of its execution, PW2 and one Saiduddin were present and signed it as witnesses and that several times she approached DW2 to reconvey the property but they were postponing and ultimately they flatly refused denying reconveyance agreement. The evidence of the respondent and plaintiff as PW2, the attestor of the original, PW3 who identified his own signature and that of the respondent on the photo copy Ex.A32, who is also the scribe of Ex.A31 receipt, which is also marked as Ex.B4 in OS No.689/72, will undoubtedly go in proof of the case of the appellant. PW5 the Income
Tax Officer identified the signature of the respondent on Ex.X1, the revision petition filed by her before the Commissioner, Income Tax, for the Assessment year 1975-76. Along with the petition the true copy of the reconveyance agreement, Ex,X2, is filed. Except a suggestion that Ex.X2 was planted subsequently, nothing was elicited to discredit him. His evidence shows that on the date of the revision petition in 1977, after the suit was filed, the reconveyance agreement was relied upon by the respondent. It is stated in the revision petition that subsequent to purchase of the suit house, she has advanced a sum of Rs.35,000/- to the appellant. She also admitted the execution of reconveyance agreement. Having cleacrly secreted away the original, the respondent flatly denied the execution. But in view of the photo copy filed by the brother-in-law of DW1 in OS No.689/72, the appellant could succeed to produce the same and file it in this Court. The only suggestion made by the respondent in the evidence of PW1 was that the agreement was prepared during the pendency of the earlier suits. No material is filed in proof of the alleged fabrication. There is, therefore, no doubt in my mind about the truth of reconveyance agreement.
10. It is next contended by the learned Counsel for the respondent that even if the agreement is true, it is unenforceable as the conditions of the agreement are not complied with. Learned Counsel submits that the borrowed amounts should have been paid on or before 22-9-1972 either in lumpsum or in three instalments and the time is made essence of the agreement. It was further contended that if the amount was not paid and reconveyance was not sought within three years, the right of reconveyance is lost and after the lapse of the said period the deed becomes unenforceable. To consider this aspect it is necessary to read clause 1(e) and clause 3 of the alleged agreement, which are as follows:
“Now this agreement for reconveyance witnesseth and it is mutually agreed as follows :–
(1) That the first party hereby agrees to reconvey the said building bearing No.22-8-389/1/2 situated at Darul-Shafa, Hyderabad, to the second party or her nominee, subject to the following terms :
………… …………
(e) It is specially agreed between the parties that time shall be the essence of this agreement and if the Second Party fails to pay the sum of Rs.55,000/- (Rupees fifty five thousands only) either in lump sum or not more than in three instalments, as agreed upon supra, and obtain reconveyance at her (Second Party) expenses on or before 22-9-1972, duly complying with all the terms above, her right of reconveyance shall stand forfeited and consequently this agreement for reconveyance shall not be enforceable in law.
………… …………
(3) That by lapse of stipulated time or on account of breach of any of the terms mentioned above this Agreement for reconveyance becomes unenforceable, and the Second Party gives up all her rights in respect of the said building and docs not take any legal action to get the building reconveyed then only, the First Party gives up her rights to recover the amounts that by her under the said two pronotes mentioned above.”
It is no doubt clear from the recitals that the offer of payment or Rs.55,000/- within the stipulated period is a condition precedent for obtaining reconveyance and as per clauses 1 and 3, on failure to do so the appellant loses all her rights.
11. But the law is well settled that in transactions of sale of immovable property, time is not the essence of the contract. Even when parties have expressly provided that time is the essence of the contract, such a stipulation would have to be read along with the other provisions of the contract. Depending upon the rigour of the stipulations, the real purpose
behind the parties stipulating a time frame, the subsequent conduct of the parties and other similar circumstances, the Courts have to interpret whether the parties really intended that time should be strictly adhered to or not, vide decisions in Govind Prasad Chaturvedi u Hari Dull Shastri, , Smt. Indira Kaur v. Shri Sheo Lal Kapoor, (supra) and Hind Construction Contractors v. State of Maharashtra, .
12. In Smt. Indira Kaur’s case (supra) it is observed :
“Whether or not time was of the essence of the contract would have also to be judged in the context and circumstances of the case. In a given case the vendor can go away from his usual place of residence or business or go abroad without leaving his address. If time were to be treated as the essence in such a contract the rightful claim of the vendee could always be defeated by going away at the material time so that the vendee could not enforce his claim.”
13. In the instant case, except reiterating that time is essence of the agreement and that the amount borrowed should be repaid within 22-9-1972 (a period of 3 years) and that the right of the party thereafter would be lost, no indication was given why the cut off date was fixed. Parties cannot therefore be said to have intended the time as the essence of the agreement.
14. Further, it should be kept in mind that this reconveyance agreement was executed contemporaneous to Ex.B3. There are several factors in the case as disclosed in the evidence extracted above to show that the transaction is in reality not a sale but a mortgage. Three transactions were brought out in evidence which showed that the respondent and her family members were indulging in lending small amounts on the security of immovable properties in the city and compelling the owners to execute sale-deeds but on promise to reconvey the property. The respondent and
her members can therefore be said to be money lenders adopting the devise as stated above. The consideration in Ex.B3 being less than the true price, the appellant continuing in occupation without effecting mutation, the rental deeds approximating to the rate of interest and such other factors found in the evidence clearly shows that Ex.B3 is as held in point No.1, only a mortgage. The Court below, however, relying upon the decisions in S. Pillai v. A. Ammal, AIR 1950 FC 38, N. Pattary Gounder v. P.L. Bapuswamy, and K. Simarathmull v. Manjalingaiah Gowder, , held that as the appellant had not succeeded inproving that the amount was paid within the time stipulated in the agreement which has to be strictly complied with, her right of reconveyance lapsed. But it should be noticed that in all these decisions the transactions are held to be out right sales. The decision in S. Pilloi ‘s case (supra), was considered in detail by the Supreme Court in Smt. Indira Kaur ‘s case (supra) and observed that the Federal Court has, by majority judgment, taken the view that the reciprocal promise was made byway of ‘concession’ and hence the reciprocal obligation should be secured strictly within the stipulated time frame. But, having regard to the facts of the Indira Kaur’s case (supra) as it was found that the transaction was a mortgage, it was held that the reciprocal agreement was not executed by way of ‘concession’ and the agreement was executed evidently because the plaintiff therein would not execute sale-deed unless an agreement of sale by a contemporaneous document was also executed to enable him to enforce specific performance within 10 years. It was therefore a transaction entered into with open eyes and there was no question of granting any concession. The same factual matrix is obtained in the instant case as is found in Indira Kaur’s case. As seen supra, the transaction being mortgage, the appellant would not have executed the sale-deed in respect of the huge house for a petty amount of Rs.20,000/- unless the respondent agreed to reconvey the property. The reconveyance
agreement is therefore was not executed by way of ‘concession’. Thus as per the law laid down by the Supreme Court unless the agreement is executed by way of ‘concession’, strict enforcement of the same cannot be compelled. Thus the decisions relied on by the learned Judge have no application.
15. We need not consider the aspect at length as the evidence in the case clearly shows that the conditions in the agreement are strictly complied with, even assuming that Ex.B3 is out-right sale-deed and time is the essence of the reconveyance agreement. Let us now consider the evidence. It is averred in the plaint that-
“That huge amounts have been paid to a tune of about Rs.80,000/- and more which is realised by way of rents and cash; which the parties arc refusing to account for. In fact, if any amount is really found due after adjustment, this plaintiff is always ready and willing to pay the same.”
PW2 deposed that-
“Several times I approached the husband of the defendant to reconvey the property but they were postponing it on some excuse or other and ultimately they flatly refused saying that there is no reconveyance agreement and the question of reconveyance does not arise. The plaintiff was then constrained to file the present suit.”
He also stated that his wife paid Rs.70,000/-to 80,000/-, but the respondent refused to account for it. The appellant stated that the respondent realised Rs.70,000/- to 80,000/-realising every month huge amounts and these amounts were paid by 1972. The evidence appears to be quite convincing. The learned Judge has not appreciated the evidence of PWs.1 & 2 and given any finding in this regard. Except a total denial of the execution of the reconveyance agreement and the payment of the amounts, no evidence was let in by the respondent to disprove the above evidence. PW2 appears to be a simple and plain person, I have gone through the evidence
of PWs.1 and 2 and it rings with truth and though they were cross-examined in extenso, their credibility was not shaken. The amounts taken by the respondent as per the case of the appellant are much more than the amount due. The appellant, therefore, averred that if any amount is due after taking the accounts, she is prepared to pay the balance. As per the terms of the agreement, if the appellant fails to pay the amount of Rs.55,000/- and obtain reconveyance, her right stands forfeited. Two conditions arc therefore contemplated to be performed, one is by the appellant to pay the amount and the other is by the respondent to execute the reconveyance before 22-9-1972. It is therefore not incumbent upon the appellant to pay the money before that time unless the respondent was prepared to execute the reconveyance deed. It is her case as evidence from the pleadings and the evidence of the appellant and her husband that the respondent had realised from the appellant an amount of Rs.70,000/- to 80,000/- but no receipts were passed by the respondent and the accounts were not finalised. The brother of the respondent’s husband admittedly filed a suit OS No.689/72 against PW2 on the basis of the pronote for Rs.60,000/-. The brother of DW2, even earlier, took into custody the original reconveyance agreement and has not returned thereafter. It is also averred in the plaint that the respondent had sold the plots which were secured for paltry amounts among her relations. Though the appellant was always ready and willing to pay the money, as per the evidence, the respondent was refusing to execute the reconveyance deed. In view of the prevailing circumstances, I am of the view that the appellant need not pay the amount unless the respondent accounted for the amounts already realised, handed over the reconveyance agreement to the appellant and was prepared to execute the reconveyance deed. As expected, he refused to reconvey denying the execution of the agreement. It is true that the respondent denied the payment, but being a businessman, he should have filed some accounts. It should be remembered that the appellant could not “file any document in
evidence of the payments as it is her case that the respondent refused to pass receipts or, finalise the accounts. In the above state of evidence, it can be safely concluded that the appellant was ready and willing to pay the amount due and it is the respondent, who refused to execute the reconveyance deed.
16. It should also be noticed that the Court below has not framed any issue whether time is essence of the agreement. Issue-1 was only in respect of genuineness of the reconveyance agreement.
17. It is next contended by the Counsel for the respondent, that the copy of the agreement of reconveyance is inadmissible in evidence.
18. The original of agreement of reconveyance is not filed for the reason that it is in the custody of the respondent’s husband. His brother admittedly took it which is evident from his acknowledgment Ex.A31. His brother filed OS No.689/72 and he filed as Ex.B4 its photo copy. Hence the certified copy is filed here as Ex.A30 as well as Ex.A32 the photo copy of the original. Its negatives are also filed and marked as Exs.A32(a), 32(b) and 32(c). It is seriously contended by the learned Counsel for the respondent that as Ex,A32 being the secondary evidence of reconveyance agreement, it has to be proved as per Sections 63, 64 and 65 of the Evidence Act. On the other hand learned Counsel for the appellant submits that Ex.A32 was already admitted in OS No.689/72. As the original was taken away but not returned and thus fraud was practised, the lower Court having considered the facts and circumstances already permitted the parties to treat Ex.A32 as the secondary evidence the respondent is estopped to question its admissibility once over. Its admissibility is no more an issue.
19. The learned Judge unnecessarily seems to have taken the admissibility as an issue, blowing it out of proportion. It must be noticed that the Court allowed a petition IA No.78/84 filed by the appellant to adduce
secondary evidence by filing Exs.A30 and A32 and the Court allowed the petition granting permission and the order has become final, as the respondent did not question the same. Even after noticing this fact, the learned Judge has erroneously reconsidered its admissibility. The only objection raised when Ex.B30 was filed was that there was no permission of the Court and not that it was not admissible in evidence. Now the permission was already given by the predecessor-in-oftice of the learned Judge, it is not permissible for the learned Judge to review the order. It has no jurisdiction to do so.
20. Sri Anantha Babu, learned senior Counsel, however, submits that this Court, being the appellate Court, can however, examine the validity of the order. As already stated, there is neither a plea, nor an issue in the suit about its admissibility. Except denying its truth and execution, no averment is made about its admissibility though the plaint is annexed with the agreement. On top of it when the photo copy of the original was filed, there can be no objection for its admissibility. The order passed by the lower Court in IA No.78/84 is again not available in the file and we are not aware what reasons prompted the Court to allow the IA.
21. Section 63 of the Evidence Act gives an inclusive definition of what the secondary evidence means, viz., certified copies, copies made from the original by mechanical process and copies compared with such copies, counter-parts of documents, etc. Section 65 enables the proof of the document by secondary evidence. The original is shown to be in the possession of the brother-in-law of the respondent he has failed to produce the same. In such a case as per Section 65 of Evidence Act, any secondary evidence of the contents of the document is admissible whereas in other cases mentioned in Section 65, the secondary evidence as specifically mentioned in Section 65 only is admissible. Ex.B32 being a photo copy of the original is, therefore, undoubtedly admissible in evidence. I am
supported in my view by the decisions in Mst. Bibi Aisha v. the Bihar Subai Sunni Majlis Avaqaf, and Arunkumar Pritmalal v. Ramanlal Shagubhai, .
22. In the circumstances, I hold that the agreement is true and it is enforceable and the right of the appellant has not perished. The point is answered accordingly.
Point No.3 :
Learned Judge gave a finding that the suit was not in time. This finding is given on the premise that the appellant has not complied with the condition of payment of money within the stipulated period. Since I am of the view that time is not the essence of the agreement and even assuming that time is the essence of the agreement, as I found that the appellant has strictly complied with the conditions of the same and there is no violation of any of the stipulation, the lower Court’s finding cannot stand. In the circumstances, the suit is within time and the finding of the lower Court in this regard is set aside. The point is accordingly answered.
Point No.4 :
In view of the finding given on points 1 and 2, the reconveyance agreement is enforceable. I have also found in my discussion on point No.2 that the appellant was ready and willing to perform her part of the contract and that she was ready to pay the balance, if any, after the accounts are realised. But as already seen, there is no clear evidence to establish the actual amount paid by her. Hence unless the appellant pays an amount of Rs.55,000/-, the respondent is not liable to reconvey the suit house. Only on such payment, the respondent can be compelled to reconvey the property by executing the sale-deed- I, therefore, hold that the appellant is entitled for grant of relief of specific performance of the reconveyance agreement on the payment of Rs.55,000/-. The point is answered accordingly.
23. In the result, CCCA No. 113/87 is partly allowed. The judgment and decree of the lower Court is set aside. OS No.306/75 is partly decreed. Accordingly the appellant is directed to deposit an amount of Rs.55,000/-(Rupees fifty five thousands only) within one month from today. On such deposit, the respondent is directed to execute sale-deed on receiving the amount of Rs.55,000/- from out of the deposit, reconveying the property in favour of the appellant at the expenses of the appellant, within a period of six months from today. The draft sale-deed shall be prepared by the appellant. If the respondent does not execute the sale-deed on the compliance of the above conditions, the Court below is directed to execute the sale-deed in favour of the appellant on such conditions as stated above.
24. In the circumstances the costs shall be borne proportionately in this Court as well as the lower Court.